§5:51Elder Abuse Complaint Against a Nursing Home
This sample uses California and Federal law, and includes a cause of action for negligent infliction of emotional distress based on bystander liability.
SAMPLE COMPLAINT
GENERAL ALLEGATIONS
1. The decedent, MARY JONES (hereinafter “decedent” or “MARY”) was at all times material hereto a resident of the County of San Francisco. She was born on November 19, 1906. Some of the acts occurred in the City and County of San Francisco and venue is proper therein.
2. Plaintiffs, SALLY JONES; MICHAEL JONES, SR.; DAVID JONES, SR.; PETER JONES, SR. are the children of MARY JONES.
3. Plaintiff JENNIFER WHITE is the granddaughter of MARY JONES.
4. SALLY JONES; MICHAEL JONES, SR.; DAVID JONES, SR.; PETER JONES, SR. are the sole surviving heirs of MARY JONES who died on March 11, 2000.
5. Plaintiffs SALLY JONES; MICHAEL JONES, SR.; DAVID JONES, SR.; PETER JONES, SR. bring this action on behalf of the decedent, and themselves, as the successors in interest of MARY JONES.
6. JENNIFER WHITE brings this action for intentional and negligent infliction of emotional distress and fraud as both a direct victim of the misconduct of defendants and as a bystander.
7. Plaintiffs, with the exception of JENNIFER WHITE, have standing to commence and maintain this action as heirs of MARY JONES pursuant to Welfare and Institutions Code §15657.3(d).
8. Plaintiffs were required by C.C.P. §364 to notify defendants of their intent to commence this action. However, a 90-day notice of intent to sue tolls only professional negligence statutes of limitation, and plaintiffs must necessarily file suit against defendants for non-professional negligence tortuous conduct, much of which is tied in some degree to professional negligence causes of action. Plaintiffs file this Complaint without serving a notice pursuant to C.C.P. §364 strictly to protect plaintiffs’ rights, given the fact that the statute of limitations is running, and with no intent to prejudice defendants, against whom a complaint will be filed in any event. Further, this Complaint in this form should assist said defendants in maintaining insurance coverage; therefore, given the fact that intentional torts will be alleged anyway, works to defendants’ personal benefit.
9. At all times herein mentioned, defendant SHADY LANE HEALTHCENTER (hereinafter “SHADY LANE”), was and is in the business of providing long-term care as a 24-hour health facility as defined in §1250(c) of the Health & Safety Code and subject to the requirements of federal and state law, and was at all times mentioned doing business at 1 Shady Lane, in Alameda County, California as a skilled nursing facility and “care custodian.” Welf. & Inst. Code §15610.17.
10. Plaintiffs are informed and believe and thereon allege that defendant WHEELERS (hereinafter “WHEELERS”) and DOES 1 to 50, inclusive are, and, at all times relevant to the acts and occurrences alleged herein, were in the business of providing long-term care as a 24-hour health care facility as defined in §1250(c) of the Health & Safety Code and were subject to the requirements of Federal and State law. Plaintiffs are informed and believe that WHEELERS and DOES 50 to 100, inclusive are and were the owners, managers and/or alter-egos of SHADY LANE and one another, and ratified the conduct of SHADY LANE, each other and their respective agents and employees and are therefore vicariously liable for the acts and omissions of these co-defendants, their agents and employees, as is more fully herein alleged.
11. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as DOES 1 to 100 inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs are ignorant of the true names and capacities of the nurses and/or medical staff on duty and present during the occurrences herein alleged at SHADY LANE, and therefore sue these nurses or medical staff by the fictitious names of defendants DOES 1 to 50 inclusive. Plaintiffs are also ignorant of the true names and capacities of the various administrators, officers, and directors of SHADY LANE, sued herein as DOES 51 to 100, inclusive, and therefore sue them by such fictitious names. Plaintiffs will seek leave of the Court to amend this Complaint to identify said defendants when their identities are ascertained. Plaintiffs are informed and believe and thereon allege that DOES 1 through 90, were licensed or unlicensed health care providers, rendering health care as a skilled nursing facility, and in the respective capacities of Owners, Managers, Administrators, nurses, physician director, or otherwise, agents or employees, to patients, including MARY JONES. Plaintiffs are informed and believe and on that basis allege that each of the fictitiously named defendants was in some fashion or manner liable and legally responsible for the damages and injuries set forth herein.
12. In doing the things hereinafter alleged, SHADY LANE and WHEELERS and the DOE defendants, and each of them, acted as the agents, servants and employees and alter egos of their co-defendants, acted within the course and scope of said agency and employment, with the knowledge, consent and approval of their co-defendants; and their conduct was ratified by their co-defendants. In particular, at all times material hereto, defendants, individually and through their officers, directors, and/or managing agents, (1) had advance knowledge of the unfitness of their respective employees and employed said employees with a conscious disregard of the rights and safety of others, (2) authorized the wrongful conduct alleged in this complaint, (3) ratified said wrongful conduct, or (4) were personally guilty of oppression, fraud, malice, and/or recklessness.
13. At all times relevant to this action, SHADY LANE and WHEELERS and the DOE defendants had the care and custody of decedent in that she resided at SHADY LANE on a 24-hour basis as a total care patient and as such were “Care Custodians” as defined in the California Welfare & Institutes Code. Accordingly, defendants and each of them were aware of MARY’s diminishing faculties and her need for assistance with virtually all activities of daily living.
14. Under the provisions of Welfare & Institutes Code §15610.27, while a resident at SHADY LANE, decedent was at all times mentioned an “elder” and defendants were caretakers in a trust relationship as defined in Welfare & Institutes Code §15610.17.
15. The acts alleged in this Complaint occurred primarily at SHADY LANE located at 1 Shady Lane, in Alameda County, California, or in connection with the management and operation of SHADY LANE and continued throughout the entirety of decedent’s stay at SHADY LANE and for a period of time beginning on, at least in or about October 1998 and continuing through the date of March 11, 2001.
16. Decedent was admitted to SHADY LANE in or about October, 1998 because she needed full time nursing care due to almost complete paralysis of the left side from a stroke, advanced diabetes, dementia and hypertension and because she could not care for herself. MARY was not able to take food or fluids by mouth and required a Gastrostomy Tube (“GT tube”), a feeding tube inserted into her stomach for all of her nourishment. MARY was completely bedridden and in fact could not even use the nurse’s call button. MARY remained in this dependent condition during her entire stay at SHADY LANE. At the time MARY was admitted, and at all times thereafter defendants were aware of her condition and inability to take care of herself.
17. When decedent was placed at SHADY LANE, family members, including JENNIFER WHITE, were informed that there would be excellent 24-hour care available for decedent and provided to decedent. They were promised adequate staffing, promised that they would keep decedent clean and promised that all of decedent’s medical needs would be met. Further, they were informed that any family member, including JENNIFER WHITE, could visit 24 hours a day.
18. Upon admission, MARY’s resident care plan stated that she was at “high risk for skin breakdown secondary to contractures, immobility, incontinence and diabetes.” The care plan also included as problems that she was “admitted with open areas to rectum” and that she had a “reddened groin” and reddened gluteal area (buttocks). The “Approach Plan” indicated that the nursing staff was to “turn and reposition the resident every two hours, provide prompt incontinence care, and provide pressure relieving devices.”
19. Despite these orders, and complaints by PLAINTIFFS that SHADY LANE staff repeatedly left her in her wheelchair for hours at a time without moving her and without any pressure relieving devices, SHADY LANE staff continued to leave her sitting or lying for hours without moving her as required throughout MARY’s stay.
20. Throughout her stay at SHADY LANE, defendants failed to change MARY’s diapers and bed linens. Her mattress and bed linens became soiled with excrement and mold, as did her wheelchair, as SHADY LANE staff often left her in soiled diapers for many hours on end, either sitting in her wheelchair or in bed.
21. Throughout her stay, SHADY LANE staff failed to put MARY’s splint on her left arm which was required by physician’s orders, including without limitation, (1) orders dated November 11, 1998 which required her to wear an “upper extremity splint for the left wrist;” and (2) Defendant’s care plan dated 10/30/98 designed to address MARY’s contractures of her extremities which required “ROM [range of motion] by staff giving care” and “apply dynamic left upper extremity splint daily.” SHADY LANE likewise failed to provide range of motion therapy which was required by her doctor and its own care plan.
22. Throughout her stay, SHADY LANE staff failed to give MARY her asthma medication, causing her much discomfort and impairing her ability to breathe.
23. Beginning In late 1998, shortly after MARY’s admission, and throughout her stay at SHADY LANE, Plaintiffs, including JENNIFER WHITE, made written and oral complaints to both the facility and the Department of Health Services Licensing and Certification Division. These complaints included, without limitation, complaints that SHADY LANE was not changing MARY’s diapers, linens, mattress or wheelchair, forcing her to lie and sit in her own excrement for hours on end; complaints that MARY’s open sores in her genital area and buttocks were not being well-cared for; that her GT Tube was often dirty and that the dressings attaching the GT Tube to her abdomen was often wet, filthy, and smelled bad; that MARY was not receiving her asthma medicine; that MARY was being ignored and mistreated in general. These complaints are not conclusive, and are a sample of the types of numerous and constant complaints PLAINTIFFS brought to the attention of SHADY LANE regarding the poor care MARY received.
24. Plaintiffs also made numerous complaints to SHADY LANE about the facility itself. Among the complaints PLAINTIFFS made were that the facility appeared to be grossly understaffed, smelled like urine and feces, had inadequate supplies of clean linens, inadequate supplies necessary for treating patients such as A & D creme sponge mouth swabs, etc.
25. On numerous occasions when plaintiffs complained to SHADY LANE about MARY’s filthy bedding, staff members of defendants replied that they could not clean her bed yet because they did not have any clean linen or towels.
26. As a result of these complaints, defendants, and each of them, assured plaintiffs and each of them, that the problems would be taken care of; however, most of the problems were not taken care of and/or were taken care of only for a very limited period of time. These acts continued up until the time of decedent’s death.
27. In or about January 1999, the California Dept. Of Health Services (“DHS”) investigated SHADY LANE regarding allegations of poor care it was providing to Plaintiff and other patients.
28. DHS issued defendants a “A Statement of Deficiencies and Plan of Correction” regarding their poor care of MARY. The Statement of Deficiencies found defendants neglected to utilize pressure relieving devices for her in her wheelchair; that MARY was not repositioned in her wheel chair, was not checked for incontinence; on at least one occasion, she was not given a rest period for five and one half hours.
29. The Statement of Deficiencies also found that SHADY LANE failed to develop a comprehensive care plan for MARY which included measurable objectives and timetables to meet her medical, nursing, mental and psycho social needs identified in the comprehensive assessment for MARY; more specifically, they failed to develop a realistic plan to assess her ongoing pain, given defendant’s knowledge that MARY had limited ability to speak and limited cognitive abilities which prevented her from articulating her pain levels.
30. The Statement of Deficiencies also found that SHADY LANE provided an inadequate amount of linens.
31. As part of the Statement of Deficiencies, DHS required SHADY LANE to develop a “Plan of Correction.” Said Plan provided, among other things:
(a)that GT Tube dressings be “changed timely after showers and when they become dislodged.”
(b)that MARY “will be turned and repositioned timely.”
32. Despite this express written plan of correction and notice of the violations therein, Defendants continued to commit the breaches of care outlined in the Plan of Corrections throughout MARY’s stay, as well as other breaches of care required by statutes and regulations.
33. All of the acts alleged in this Complaint constitute continuing violations that continued to within one year of the date of the filing of this Complaint. Plaintiffs did not discover defendant’s improper conduct and decedent’s and plaintiffs’ injuries therefrom until Mach 11, 2000. Further, decedent, due to her physical and mental incompetency was unable to discover and take any action during her lifetime.
34. When decedent was admitted into SHADY LANE, she was to have been provided with custodial care, appropriate medical monitoring, therapy, healthcare and nutrition, hygiene, and all that one would expect of a skilled care facility to facilitate her recovery. Defendants had a non-delegable duty to regularly monitor MARY’s mental and physical condition, including, but not limited to:
a.her food intake and level of nourishment;
b.her food intake and level of hydration;
c.her skin integrity;
d.the maintenance of her GT tube in a safe, dry and sanitary manner;
e.the maintenance and changing of her diapers in a clean, dry and sanitary manner;
f. her ongoing open sores in genital and buttocks area which were caused by failure to timely change her diapers;
g.provision of range of motion therapy and other efforts to maintain her mobility and prevent contractures;
h.provision of medication as needed and pursuant to doctors’ orders.
35. As a result of the reckless (or worse) neglect of MARY by defendants and each of them, MARY was so weekend that she never recovered her health. On March 11, 2000, plaintiffs’ decedent died after receiving an infection which was not properly treated at defendant facility.
36. Despite their awareness of the risks to MARY’s health and well-being, the care custodian defendants and each of them repeatedly and flagrantly violated several provisions of title 22 of the California Code of Regulations as follows:
a.failed to frequently monitor MARY’s condition in order to prevent weight loss, malnutrition, and/or dehydration [§72311(a)(1)(A)];
b.failed to develop a care plan with measurable objectives to assure MARY received adequate food and fluid intake [§72311(a)(1)(B)];
c.failed to review, evaluate and update their inadequate nutritional care plan when circumstances required it [§72311(a)(1)(C)];
d. failed to implement the care plans, including but not limited to (i) failing to regularly and frequently assess MARY’s skin integrity and hydration status and (ii) failing to record MARY’s fluid intake and output every shift;
e. failed to notify MARY’s treating physician of adverse changes in her condition [§72311(a)(3)(B)];
f. failed to properly organize, manage, operate, and/or control SHADY LANE [§72501];
g. violated MARY’s right to be free from mental and/or physical abuse [§72527(a)(9)];
h. violated MARY’s right to be treated with consideration, respect and full recognition of dignity and individuality, including privacy in treatment and in care of personal needs [§72527(a)(11)];
i. failed to document reasons for the denial or limitations of MARY’s rights in her health record;
j. SHADY LANE failed to develop a comprehensive care plan for MARY which included measurable objectives and timetables to meet her medical, nursing, mental and psycho social needs identified in the comprehensive assessment for MARY; more specifically, they failed to develop a realistic plan to assess her ongoing pain, given defendant’s knowledge that MARY had limited ability to speak and limited cognitive abilities which prevented her from articulating her pain levels [§72311(a)(2)];